This textbook presents a range of classical philosophical approaches in order to show that they are unsuitable as a foundation for human rights. Only the conception of human dignity –based on the Kantian distinction between price and dignity – can provide a sufficient basis. The derivation of human rights from the principle of human dignity allows us to identify the most crucial characteristic of human rights, namely the protection of personhood. This in turn makes it possible (1) to distinguish between real moral human rights and spurious ones, (2) to assess the scope of protection for many codified human rights according to the criteria of “core” and “yard,” and (3) offers a point of departure for creating new, unwritten human rights. This philosophical basis supports a substantial reassessment of the case law on human rights, which will ultimately allow us to improve it with regard to legal certainty, clarity and cogency.
The textbook is primarily intended for advanced law students who are interested in a deeper understanding of human rights. It is also suitable for humanities students, and for anyone in the political or social arena whose work involves human rights and their enforcement.
Each chapter is divided into four parts: Abstracts, Lecture, Recommended Reading, and Questions to check reader comprehension. Sample answers are included at the end of the book.
Author(s): Paul Tiedemann
Series: Springer Textbooks in Law
Edition: 1st ed. 2020
Publisher: Springer Nature
Year: 2020
Language: English
Pages: 422
Preface
Contents
Abbreviations and Sources of Codifications
List of Figures
1: Introduction
1.1 The Aims of the Lecture
1.2 The Concept of Human Rights
1.3 The Concept of Philosophy
1.4 The Reasons in Favor of a Philosophical Analysis and Foundation of Human Rights
Reading Recommendations
Case Law
2: Utilitarian and Aristotelian Approach
2.1 The Utilitarian Approach
2.2 The Aristotelian Approach
2.3 Requirements for an Adequate Theory of Foundation
Reading Recommendations
3: The Social Contract Approach
3.1 The Theory of Social Contract
3.2 Thomas Hobbes
3.3 John Locke
3.4 Jean-Jacques Rousseau
3.5 John Rawls
3.6 Why Social Contract Theories Cannot Serve as a Foundation for Human Rights
3.7 A New Approach After World War II
Reading Recommendations
Case Law
4: The Human Dignity Approach
4.1 Human Dignity in International Law
4.2 The History of the Notion “Human Dignity”
Reading Recommendations
Case Law
5: The Human Dignity Principle I
5.1 Dignity as a Value Judgment
5.2 Dignity as a Specific Category of Value
5.3 Personhood as the Value Standard of Dignity
5.4 “Me-Dignity” and General Human Dignity
5.5 The Risk of Empirical Error
Reading Recommendations
6: The Human Dignity Principle II
6.1 The Equiprimordiality Thesis
6.2 Dependence on Passive Recognition of Personhood
6.3 Dependence on Active Recognition of Personhood
6.4 Verification or Failing of Falsification?
6.5 The Generality of the Equiprimordiality Thesis
6.6 Human Dignity in Cases of Doubt
Reading Recommendations
7: From Human Dignity to Human Rights
7.1 What Is a Right?
7.2 What Is Meant by Having a Right?
7.3 Deriving Obligations from Values
7.4 Deriving Rights from Values
Reading Recommendations
8: Human Rights Concerning the Protection of Physical and Mental Integrity
8.1 The Multitude of Human Rights
8.2 The Ban on Inhuman/Degrading/Cruel Treatment and Torture in International Law
8.3 Philosophical Analysis
8.4 Critique of the Case Law
Reading Recommendations
Case Law
9: Freedom of Movement and the Rights Under Detention
9.1 The Habeas Corpus Rights
9.2 Humane Living Conditions While Under Detention
9.3 The Function of Article 10 ICCPR
9.4 Total Institutions
9.5 The Fight to Freedom of Movement
Reading Recommendations
Case Law
10: Human Rights Concerning the Protection of Intellectual Integrity
10.1 The Freedom of Information
10.2 Freedom of Expression
10.3 Freedom from Censorship
10.4 The Right to Free Assembly and the Right to Free Association
10.5 Restriction Clauses
Reading Recommendations
Case Law
11: The Human Right to Privacy
11.1 The History of Privacy Rights
11.2 The Need for Privacy
11.3 The Particular Rights to Privacy in Light of Goffman’s Theory
11.3.1 The Right to Privacy in One’s Home
11.3.2 The Right to Private Life
11.3.3 The Right to Freedom of Marriage
11.3.4 The Right to Freedom of Establishing a Family
11.3.5 The Right to Family Life
11.3.6 The Right to Privacy in One’s Correspondence
11.4 Protection of Social Ties (“Rootedness”)
11.5 Limiting Clauses of the Codified Human Rights to Privacy
Reading Recommendations
Case Law
12: The Right to Freedom of Conscience
12.1 The History of the Legal Concept “Conscience”
12.2 The Mechanism of Conscience
12.3 Is the Right to Freedom of Conscience a Human Right?
Reading Recommendations
Case Law
13: The Right to Spiritual Freedom
13.1 The Generality of Freedom of Religion
13.2 The Freedom to Believe or Not Believe
13.3 The Freedom to Practice Religion
13.4 Religious Practices and the Maintenance of Personhood
13.5 The Criticism of Case Law
13.6 The Timeliness of Religious Freedom
Reading Recommendations
Case Law
14: The Right to Life
14.1 The Codification of the Right to Life
14.2 The Unique Character of the Right to Life
14.3 The Existence-as-Attribute Thesis
14.4 The Basis Thesis
14.5 The Sanctity of Life Thesis
14.6 The Mortal Fear Thesis
14.7 The Function of the Right to Life
Reading Recommendations
Case Law
15: Social Human Rights
15.1 The Distinction Between Liberal and Social Human Rights
15.2 The Codification of Social Human Rights
15.3 The List of Codified Social Human Rights
15.4 The Goods of the Social Human Rights and its Relevance for Humane Living Conditions
15.5 Duties to Refrain From Doing Something and Duties to Do Something
15.6 The Utilitarian Approach
15.7 The Deontological Approach
15.8 Social “Human Rights” are Not Human Rights
15.9 The Redundancy of Social Human Rights
Reading Recommendations
Case law
16: Right to Asylum
16.1 The Right to Asylum in International Law
16.2 Is There a Moral Human Right to Global Free Movement?
16.3 Is There a Moral Human Right to Asylum?
16.4 Right to Asylum for Asylum Seekers Inside the State Borders
16.5 The Refoulement Ban in Positive Asylum Law
16.6 Right to Asylum for Asylum Seekers Outside the State Borders
Reading Recommendations
Case Law
17: Fake Human Rights
17.1 The Right to Property
17.2 Philosophical Conceptions of Property
17.3 Collective Human Rights
Reading Recommendations
Case Law
18: The Principles of Liberty
18.1 Liberty in Positive Law
18.2 The Content of the Principle of Liberty
18.3 Rules and Principles
18.4 The Philosophical Foundation of the Principle of Liberty
18.5 The Legal Instruments for Taking Care of Liberty
Reading Recommendations
Case Law
19: The Principles of Equality
19.1 The General Appearance of Equality within Human Rights Codifications
19.2 Is There a Human Right to Equality?
19.3 Is There a Human Right Against Discrimination on Reasons of “Race”, Color, Sex Etc.?
19.4 Is There a Human Right Against Discrimination on Reasons of Making Use of Human Rights?
Reading Recommendations
Case Law
20: Rights in Conflict
20.1 Methods for Resolving Norm Conflicts
20.2 Freedom of Action v. Freedom of Action
20.3 Margin Human Right v. Freedom of Action
20.4 Margin Human Right v. Margin Human Right
20.5 Freedom of Action v. Core Human Right
20.6 Margin Human Right v. Core Human Right
20.7 Core Human Right v. Core Human Right
Reading Recommendations
Case Law
21: Do You Still Remember – The Answers
21.1 Answers to Chapter 1
21.2 Answers to Chapter 2
21.3 Answers to Chapter 3
21.4 Answers to Chapter 4
21.5 Answers to Chapter 5
21.6 Answers to Chapter 6
21.7 Answers to Chapter 7
21.8 Answers to Chapter 8
21.9 Answers to Chapter 9
21.10 Answers to Chapter 10
21.11 Answers to Chapter 11
21.12 Answers to Chapter 12
21.13 Answers to Chapter 13
21.14 Answers to Chapter 14
21.15 Answers to Chapter 15
21.16 Answers to Chapter 16
21.17 Answers to Chapter 17
21.18 Answers to Chapter 18
21.19 Answers to Chapter 19
21.20 Answers to Chapter 20
Index
